A Dozen Books for Defending Free Speech

So much is happening on the issue of free speech these days that anyone interested in the future of this important right will want to educate himself about the subject. That can be a daunting task, as hundreds of books have been written on free speech and the First Amendment. Fortunately, as a constitutional lawyer and someone who’s been researching and writing on the topic for decades, I’ve come across a number of good books that I can recommend for the lay person. These books will give you a solid understanding of the history of free speech and the legal cases that have shaped it, the major free speech controversies today, and many of the ideas that have shaped those controversies.

How I selected the books: these are books that I have read on topics within the broad subject of free speech that are of interest to me and that, in most cases, shed light on current controversies, such as offensive speech, speech on campus, Islamist attacks on freedom of speech, and campaign finance issues. While I start with books on the history and doctrine, often the best approach to understand any topic is to delve into the controversies first and circle back to history and doctrine.

Note that my recommendations do not mean I agree with everything in these books. This is not a book review, but more of a capsule summary of books that provide valuable information about the vast topic of free speech. I indicate why I found each book valuable, but some have flaws that I haven’t discussed. On balance, though, each is well worth reading.

History and doctrine

For those interested in the history and doctrine of the right to free speech and the First Amendment, a pair of books provide very good summaries.

The first is The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate, which is edited by Vikram David Amar, a law professor and constitutional scholar.

Amar’s introduction provides a good “guided tour,” as he calls it, of the history, major cases and controversies, and theoretical foundations of First Amendment law. That is followed by sections on the historical foundations of the First Amendment, descriptions of the leading theories underlying free speech, and a section devoted to some of the areas of the most hotly debated areas of First Amendment law. The chief virtues of the book are that it is short, the chapters can be read in any order, and it provides a good overview of the major disputes and contemporary thinking that have shaped First Amendment law in America.

The second is Terry Eastland’s Freedom of Expression in the Supreme Court: The Defining Cases. The book provides summaries of the seminal cases in the development of modern First Amendment law, from 1919 up through the Court’s decisions on internet regulation and the National Endowment for the Arts in the late 1990s.

For each case, Eastland provides a short summary of the facts and the issue, relevant excerpts from the court opinions, and commentary, both pro and con, from contemporaneous sources. Although it does not include many recent and important free speech decisions, it’s still an invaluable resource for anyone who wants to understand the major free speech cases in America. The book occupies a corner of my desk and I use it as a reference constantly.

Offensive speech

Free speech has always been a hot button issue in the Western world, but it has gained special prominence in recent years because of growing concern over so-called offensive speech. Typically that means speech that allegedly offends individuals based on their race, sexual orientation, ethnicity, or religion, but the category is growing.

A number of books have been written on the topic, but I’ve found the following four books particularly enlightening. All focus mostly on what is happening in the U.K. and Europe, but the culture of sensitivity there—that is, the increasing tendency of people to demand that offensive speech be punished—seems to be taking root everywhere in the Western world. In America it is easy to become complacent about opposition to offensive speech, as we have a First Amendment that prevents efforts to ban it—at least, for now. But even constitutional rights can be reinterpreted by courts, so we should pay attention to what is happening in other countries. All of these books provide invaluable, and chilling, evidence that even free societies will censor speech when motivated by bad ideas and a misunderstanding of the right to free speech.

The first is Trigger Warning: Is the Fear of Being Offensive Killing Free Speech by Mick Hume. Hume, an editor-at-large at the British magazine Spiked, begins with the attacks on Charlie Hebdo in 2015 in order to illustrate the growing antipathy toward free speech today. As he points out, the initial outpouring of sympathy for Charlie Hebdo turned to recrimination as many people blamed the magazine for inciting the attacks by offending Muslims. Hume argues that that sort of appeasing attitude can only embolden those who would attack others for expressing allegedly offensive views, and he’s right. Indeed, as I show in my book, Defending Free Speech, appeasement by the West, starting with the Iranian fatwa on the novelist Salman Rushdie in 1989, has resulted in a steady stream of attacks on up to today.

Hume goes on to examine the history of freedom of speech and a number of contemporary controversies, and he answers some of the most prominent arguments against free speech. Two aspects of Hume’s attitude leap out as virtues: First, referring to free speech as the “killer app of civilization,” Hume conveys a deep appreciation for the importance of free speech to the very existence of modern society. Second, his attitude toward the perpetually offended is refreshing: If you don’t like what you hear, stop listening. And maybe grow up a little while you’re at it.

The next two books are concise guides to important aspects of today’s debate over free speech.

Claire Fox’s ‘I Find That Offensive!’ seeks to catalogue and explain the mentality that has created today’s culture of sensitivity. She begins with anecdotes about talks she gave at two seemingly different schools. One was a Muslim school and the subject was the Charlie Hebdo attacks; the other was an all-girls school and the subject was rape. In each case, Fox made arguments that offended large numbers of students. Her description of the students’ reactions captures well the mentality she seeks to explain:

What these two schools had in common were teenagers who believed that words really hurt and that contradictory opinions to their own beliefs were the cause of real harm. And yet, despite the pupils’ apparent hyper-sensitivity, their emotional suffering was combined with an almost belligerent sense of entitlement that their feelings should take precedence. In both instances, I was put under pressure to retract, apologise and assuage students’ distress. While these young Muslims and young feminists may superficially seem to have little in common, they were indistinguishable from each other in demanding bans and apologies for what they considered dangerous ideas. Both groups agreed that my advice that ‘sticks and stones might break your bones, but words will never hurt me’ was an outdated misunderstanding of the fundamental damage that words can inflict on vulnerable individuals.

This description will sound familiar to anyone who has paid attention in recent years to what is happening on American college campuses. The remainder of the book seeks to explain why so many young people today hold these views. The book offers many examples of this mentality in action, both in the U.K. and here in the United States. That, alone, is worth the read, but Fox offers a number of valuable insights into the ideas that have led to these views.

Philip Johnston’s Feel Free to Say It: Threats to Freedom of Speech in Britain Today relies on many of the same types of examples of hypersensitive people, both young and old, in the U.K. But his book answers the next logical question: Why should we care? That many people today are likely to take offense at even innocuous statements can be annoying and perhaps lead to social ostracism, but beyond that, what’s the big deal? Johnston’s answer is that, increasingly, offending others in the U.K. is illegal under the nation’s “hate speech” laws.

The final book in this category, Paul Coleman’s Censored: How European “Hate Speech” Laws are Threatening Freedom of Speech takes a much deeper dive into the topic of hate speech laws throughout Europe. It explains the history of these laws, including the fascinating fact that the laws, most of which were passed in the immediate post-war period in Europe, were championed primarily by the Soviet Union and Eastern bloc nations. It then rebuts the common argument that the laws are seldom used and thus have little impact on free speech. Coleman shows that, in fact, quite a lot of people have been convicted under the laws. And even when no conviction was secured, he shows how simply being charged with a violation and having to endure investigations and prosecutions under the laws can chill speech.

Coleman then critically examines the two leading arguments for hate speech laws: that hate speech leads to violence and that it robs individuals of their dignity. He makes many valid points on both arguments, but the far more valuable parts of the book are the sections on the history of the laws and the extent to which they are being enforced. The book is must-reading for anyone who cares about the future of free speech in the West.

Taken together, these four books should serve as a warning to Americans: value freedom of speech—and understand the nature and purpose of the right—or you will lose it. As I’ve argued, the First Amendment will protect our right to free speech only so long as Americans support the right. That many Europeans are turning against it is cause for alarm.

Free speech on campus

Perhaps nowhere in America today are clashes over the meaning and value of free speech coming up as frequently as on college campuses. Two books provide excellent resources for understanding these conflicts.

The first is the now classic work by Alan Charles Kors and Harvey Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses. Many readers will know Kors and Silverglate as the founders of the Foundation for Individual Rights in Education (FIRE). Shadow University recounts the events and conditions on college campuses that led the two to see the need for such an organization. Although now twenty years old, the book remains an invaluable resource for understanding the conflicts we are currently seeing on college campuses.

The story begins with the now-famous “water buffalo” incident in 1993 at the University of Pennsylvania, when Eden Jacobowitz, a student, called a group of black women who were making noise below his window “water buffalos.” The women filed a complaint with the university, which later decided to prosecute Jacobowitz for violating U. Penn’s racial harassment policy. Kors and, later, Silverglate, an accomplished civil rights attorney, became involved in Jacobowitz’s defense.

The incident brought to light the prevalence of anti-harassment provisions, often referred to as “speech codes,” on many campuses. These are campus policies that prohibit students from saying things or engaging in conduct that, quoting U. Penn’s policy at the time, “insult[] or demean[] [a person] . . . or abuse[] a power relationship with that person, on the basis of his or her race, color, ethnicity, or national origin.” Among other things, the policy lists “slurs” along with “demeaning jokes or derogatory stereotypes” as examples.

Kors and Silverglate track the history and prevalence of these codes, the ideas that have motivated them, their often vague language and the byzantine and unjust enforcement processes that schools impose on students who violate them. The chief virtue of the book is exposure, not only of the prevalence of so-called speech codes on campus, but of the ideas that have motivated faculty, administrators, and often students to demand that universities police every utterance that might be deemed offensive to some student or group.

One does not have to agree with Kors and Silverglate that the policies violate students’ rights to free speech to gain value from the book. That is a legal and philosophical question that turns on the nature of rights and whether universities can violate them by imposing even foolish policies on students who voluntarily attend the schools. But even with that caveat, the book makes a solid case that America’s colleges are infantilizing young people and priming them to expect government to protect them from speech that offends.

Greg Lukianoff’s Unlearning Liberty: Campus Censorship and the End of American Debate provides a nice companion to The Shadow University. Lukianoff is the president and CEO of FIRE, and his book essentially continues the story that The Shadow University began by offering a wealth of anecdotes and evidence about speech codes and the growing culture of sensitivity on campus. Together the books go a long way toward explaining the sorry state of thinking about free speech and free thought among young people and why we are seeing increasing demands for laws that regulate speech both here and abroad.

The Islamist threat to free speech

When we talk about “threats” to free speech, we typically mean that the right is under intellectual attack. But in one area, the threat is existential. We learned this when Islamic totalitarians attacked Charlie Hebdo and a cartoon contest in Garland, Texas. We learned it when threats were made against the TV show South Park and cartoonist Molly Norris, when the Danish cartoons crisis broke in 2006, and when Theo van Gogh was murdered in Amsterdam for making a film critical of Islam. We learned it first when Iran’s Ayatollah Khomeini issued a fatwah against the novelist Salman Rushdie in 1989.

Intellectuals affiliated with the Ayn Rand Institute pointed out the grave threat the fatwah posed to free thought and free speech back then. Our leaders and intellectuals ignored the threat and appeased the aggressors. They continue to do so today. The result is a kind of de facto censorship. Everyone knows that if you offend Islamists, our government will not protect you and our intellectuals will likely blame you for any threats or violence that result. The effect is widespread reluctance to criticize a religiously motivated ideology, Islamic totalitarianism, that is every bit as threatening to civilized society as fascism or communism.

Two books on my list address this Islamist threat to free speech and how we have allowed it to go unchallenged.

The first, Bruce Bawer’s Surrender: Appeasing Islam, Sacrificing Freedom, is not strictly speaking a book about free speech. The subject, as the title indicates, is appeasement of Islamists by the West and the impact that has had on our freedom in general, but particularly our intellectual freedom. Bawer’s point is not so much that Islamists have stripped us of our right to free speech, but that we have willingly given it up.

Bawer provides a wealth of evidence to support his argument. The book recounts many of the incidents with which anyone who has followed the Islamist threats and attacks will be familiar—the Rushdie fatwah, the murder of Theo van Gogh and the threats to Ayaan Hirsi Ali, the Danish cartoons crisis, and many more. But Bawer provides such rich detail and so much evidence of Western appeasement that his thesis is undeniable. We are giving up one of our most precious freedoms, and a pillar of Western civilization, for fear of angering people who want to destroy us.

Readers familiar with Ayn Rand’s ideas will recognize altruism as the idea behind the appeasing mentality Bawer describes, along with what Ayn Rand called “hatred of the good for being the good.” Both motivate many in the West to denigrate the values that at the foundation of Western civilization: reason, individualism, and the freedom that allows us to pursue our own happiness. These values have made possible the industrialization, technological advancement, and unparalleled wealth that has brought opportunity and the good life to billions of people. Both lead to a kind of self-imposed guilt and even hatred for Western society by Western intellectuals and leaders, which drive them to compromise Enlightenment values whenever they clash with the values of other cultures. Because the primary driver of Western civilization is reason and all that it produces, one of the primary fronts in the battle against those who oppose Western civilization is freedom of thought and free speech.

Flemming Rose’s The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech offers even more evidence that the West is willingly giving up the freedom of speech to Islamic totalitarians. Rose is the former editor of the Danish newspaper Jyllands-Posten who made the fateful decision in 2005 to publish cartoons of Muhammad as part of a story on self-censorship. The decision led to the now-famous Danish cartoons crisis, as Muslims throughout the world rioted and Rose landed on an Al-Qaeda hit list alongside Salman Rushdie and Ayaan Hirsi-Ali, among others.

Rose’s book is part memoir and part cautionary tale. He describes his thinking both before the crisis and after, why he decided to publish the cartoons, and whether he regrets his decision. Like Bawer’s book, Rose’s contains much more detail than you are likely to have read in any news accounts. The level of antipathy for Rose among his countrymen and their desire to appease his Islamist critics and attackers is jarring. The book also contains chapters on the history of free speech in Europe, hate speech and Holocaust denial laws, and much more. It is an edifying and riveting story about an important event in the history of free speech and a truly heroic man.

Campaign finance law

The last category I include here may seem out of place. Campaign finance law has long been regarded by the legal community as a kind of annoying step child of free speech law. It deals not with pure questions of free speech, the thinking goes, but with the problem of “money in politics” and corruption. There are elements of truth to this attitude, but if you are inclined to think the topic does not belong on this list, think again.

Campaign finance law poses one of the most serious threats to freedom of speech in America, in part because it is often not seen as an issue of free speech. To see why it presents such a threat, simply consider the facts of the widely reviled Citizens United case. The law at issue prevented an organization from broadcasting a film that criticized a presidential candidate close to an election. The argument for restricting the film was precisely that it might influence people’s thinking. When laws like that are passed in America and upheld by the Supreme Court (which the law at issue in Citizens United originally was) something has gone terribly wrong.

Two great resources for understanding what has gone wrong on this subject are Bradley Smith’s Unfree Speech: The Folly of Campaign Finance Reform and John Samples’s The Fallacy of Campaign Finance Law.

Smith, a law professor and former commissioner on the Federal Election Commission, is one of the most knowledgeable people about campaign finance law in the nation. He is also the person probably most responsible for making campaign finance law a significant free speech issue. The book was published before the law at issue in Citizens United was passed and then struck down, so it’s a bit dated. Nonetheless, Unfree Speech is still one of the best resources for understanding the issues in campaign finance law, the history of the laws, and why restricting money in politics presents a serious threat to freedom of speech.

Samples is the director of the Center for Representative Government at the Cato Institute. In The Fallacy of Campaign Finance Reform, he addresses the ideas behind the campaign finance laws and compares them with the ideas that support freedom of speech. He also responds to the main arguments in favor of the laws.

Readers will find a great deal of valuable information in the entire book. Speaking as someone who knows this area well, the chief value of the book for me was its discussion of the ideas behind the campaign finance laws. Samples pegs the progressives of the late 19th and early 20th centuries as the chief intellectual architects of the laws. His argument is persuasive, both because the progressives advocated laws limiting political “influence” by so-called “special interests” (chiefly corporations) and because their political philosophy was self-consciously contrary to that of the American Founders. It is thus not surprising that the campaign finance laws are inconsistent with the First Amendment.

Pick Up the Shield: Another great way to educate yourself about free speech is Steve Simpson’s book, Defending Free Speech (a free digital version is also available). And don’t just educate yourself: get up, go out, and defend this important right!

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